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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

5 FLRA No. 96
INTERNAL REVENUE SERVICE,
BOSTON DISTRICT OFFICE,
BOSTON, MASSACHUSETTS AND
INTERNAL REVENUE SERVICE,
ANDOVER SERVICE CENTER,
ANDOVER, MASSACHUSETTS
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 1-CA-71
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT ONE OF THE
RESPONDENTS, INTERNAL REVENUE SERVICE, BOSTON DISTRICT OFFICE (BDO), HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE AMENDED COMPLAINT,
AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THE JUDGE FURTHER FOUND THAT THE OTHER NAMED
RESPONDENT, INTERNAL REVENUE SERVICE, ANDOVER SERVICE CENTER (THE
CENTER), HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED AND
RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE DISMISSED.
THEREAFTER, BDO AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S
RECOMMENDED DECISION AND ORDER, AND BDO FILED AN OPPOSITION TO THE
GENERAL COUNSEL'S EXCEPTIONS. /1/
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. /2/ THE RULINGS ARE HEREBY AFFIRMED.
UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED BELOW.
THE JUDGE FOUND THAT BDO VIOLATED SECTION 7116(A)(1) AND (2) OF THE
STATUTE BY REMOVING EMPLOYEE JAMES E. TACY, REVENUE OFFICER, GS-12, FROM
A WORK DETAIL AT THE CENTER AT LEAST IN PART BECAUSE OF TACY'S
ACTIVITIES ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU)
DURING HIS NON-DUTY TIME WHILE AT THE CENTER. /3/ IN SO FINDING, THE
JUDGE SPECIFICALLY REJECTED THE CONTENTION THAT TERMINATION OF THE
DETAIL WAS EFFECTED SOLELY FOR BUSINESS REASONS, RELYING UPON BDO'S
AWARENESS OF TACY'S ACTIVITIES ON BEHALF OF NTEU, THE TIMING OF TACY'S
REMOVAL FROM THE DETAIL, AND "THE LACK OF ANY CREDIBLE AND PERSUASIVE
REASON FOR THE TERMINATION" OF THE DETAIL. MORE PARTICULARLY, THE JUDGE
REJECTED THE ASSERTION THAT TACY'S DETAIL HAD BEEN RESCINDED BY BDO
BECAUSE GS-12 WAS TOO HIGH A GRADE FOR THE DETAIL AS SUGGESTED IN A
MEMORANDUM PREVIOUSLY SUBMITTED BY TWO BDO EMPLOYEES WHO HAD BEEN
DETAILED TO THE CENTER IN THE PAST. IN REJECTING SUCH ASSERTION, THE
JUDGE NOTED THAT THE 1979 IRS MANUAL SUPPLEMENT, WHICH PROVIDES A BASIS
FOR RECONSTITUTING THE DETAIL, IMPOSED NO GRADE LEVEL RESTRICTION ON THE
DETAIL; THAT THE EMPLOYEE WHO ORDINARILY WOULD HAVE FILLED THE DETAIL
ALSO WAS A GS-12; THAT BDO MANAGEMENT WAS AWARE OF BOTH TACY'S GRADE
LEVEL AND THE FORMER DETAILES' MEMORANDUM AT THE TIME IT APPROVED TACY'S
REQUEST FOR THE DETAIL; THAT FOR A PERIOD PRIOR TO THE DETAIL, AND
THEREAFTER, GRADE LEVEL WAS NOT A MANAGEMENT CONSIDERATION; THAT THE
TERMINATION OF TACY'S DETAIL INVOLVED CONSIDERABLE DIFFICULTY IN TERMS
OF REASSIGNING WORK SO AS TO ENABLE ANOTHER EMPLOYEE TO BE DETAILED AS A
REPLACEMENT FOR TACY; THAT NO OTHER DETAIL HAD EVER BEEN TERMINATED
PREMATURELY; AND THAT THE TIMING OF MANAGEMENT'S CONCERN WITH TACY'S
UNION ACTIVITIES AT THE CENTER COINCIDED WITH THE TERMINATION OF HIS
DETAIL. ACCORDINGLY, AS PREVIOUSLY STATED, THE JUDGE CONCLUDED THAT THE
REMOVAL OF TACY FROM THE DETAIL WAS MOTIVATED AT LEAST IN PART BY
ANTI-UNION CONSIDERATIONS AND WAS A REPRISAL FOR TACY'S ACTIVITIES ON
BEHALF OF NTEU, IN VIOLATION OF SECTION 7116(A)(1) AND (2) OF THE
STATUTE. HOWEVER, THE JUDGE FURTHER FOUND THAT THE RECORD CONTAINS NO
EVIDENTIARY BASIS FOR CONCLUDING THAT THE CENTER WAS IN ANY WAY
RESPONSIBLE FOR THE TERMINATION OF TACY'S DETAIL; ACCORDINGLY, HE
CONCLUDED THAT THOSE PORTIONS OF THE COMPLAINT ALLEGING VIOLATIONS
AGAINST THE CENTER SHOULD BE DISMISSED. BY WAY OF REMEDY, THE JUDGE
ORDERED, INTER ALIA, A POSTING AT BDO BUT NOT AT THE CENTER; THE
GENERAL COUNSEL'S EXCEPTIONS OBJECT, IN PART, TO THE ABSENCE OF A
POSTING REQUIREMENT AT THE CENTER.
THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT RESPONDENT
BDO VIOLATED SECTION 7116(A)(1) AND (2) OF THE STATUTE. THE AUTHORITY
ALSO ADOPTS THE JUDGE'S RATIONALE FOR FINDING A VIOLATION, AS SET FORTH
SUPRA. HOWEVER, UNLIKE THE JUDGE, THE AUTHORITY FINDS THAT THE JUDGE'
CREDIBILITY RESOLUTIONS LEAD TO THE CONCLUSION THAT THE TERMINATION OF
TACY'S DETAIL WAS BASED SOLELY UPON HIS PROTECTED UNION ACTIVITIES AT
THE CENTER SINCE THE RECORD ESTABLISHES THAT THE REASON ASSERTED BY BDO
FOR TAKING SUCH ACTION IS PRETEXTUAL.
HAVING FOUND THAT BDO VIOLATED SECTION 7116(A)(1) AND (2) OF THE
STATUTE, THE AUTHORITY ADOPTS THE JUDGE'S REMEDIAL ORDER WHICH REQUIRES
BDO TO CEASE AND DESIST FROM SUCH UNLAWFUL CONDUCT AND TO POST A NOTICE
AT THE VARIOUS POSTS OF DUTY WITHIN BDO. ADDITIONALLY, INASMUCH AS THE
UNFAIR LABOR PRACTICE OCCURRED AT THE CENTER AND THUS DIRECTLY AFFECTED
THE PROTECTED RIGHTS OF EMPLOYEES AT THAT LOCATION, THE AUTHORITY ALSO
SHALL ORDER BDO TO POST THE SAME NOTICE AT THE CENTER IN ORDER TO FULLY
REMEDY THE UNFAIR LABOR PRACTICE. /4/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE RESPONDENT INTERNAL REVENUE SERVICE, BOSTON DISTRICT OFFICE,
SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING JAMES E. TACY IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, BY TERMINATING ANY DETAIL OF JAMES E. TACY BECAUSE OF
ACTIVITIES ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION AT THE
INTERNAL REVENUE SERVICE, ANDOVER SERVICE CENTER, ANDOVER,
MASSACHUSETTS.
(B) DISCOURAGING JAMES E. TACY FROM MEMBERSHIP IN THE NATIONAL
TREASURY EMPLOYEES UNION BY DISCRIMINATING AGAINST HIM BECAUSE OF
ACTIVITIES ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION AT THE
INTERNAL REVENUE SERVICE, ANDOVER SERVICE CENTER, ANDOVER,
MASSACHUSETTS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING JAMES E. TACY, OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF RIGHTS
ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) POST AT THE VARIOUS POSTS OF DUTY WITHIN THE BOSTON DISTRICT
OFFICE AND THE ANDOVER SERVICE CENTER, UNITED STATES INTERNAL REVENUE
SERVICE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE DISTRICT DIRECTOR AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR, REGION I, FEDERAL LABOR RELATIONS
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-71,
INSOFAR AS IT ALLEGES VIOLATIONS OF SECTION 7116(A)(1) AND (2) OF THE
STATUTE BY THE ANDOVER SERVICE CENTER, ANDOVER, MASSACHUSETTS, BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 28, 1981
RONALD W.HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE JAMES E. TACY IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY TERMINATING A DETAIL TO WHICH JAMES E. TACY IS
ASSIGNED BECAUSE OF ACTIVITIES ON BEHALF OF THE NATIONAL TREASURY
EMPLOYEES UNION AT THE ANDOVER SERVICE CENTER, UNITED STATES INTERNAL
REVENUE SERVICE, ANDOVER, MASSACHUSETTS.
WE WILL NOT DISCOURAGE JAMES E. TACY FROM MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATING AGAINST HIM BECAUSE OF ACTIVITIES ON
BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION AT THE ANDOVER SERVICE
CENTER, UNITED STATES INTERNAL REVENUE SERVICE, ANDOVER, MASSACHUSETTS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
411 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
NUMBER IS: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
RICHARD D. ZAIGER, ESQUIRE
PAUL E. STANZLER, ESQUIRE
COUNSEL FOR THE GENERAL COUNSEL
PETER M. CONROY, JR., ESQUIRE
COUNSEL FOR THE CHARGING PARTY
ROBERT F. HERMANN, ESQUIRE
COUNSEL FOR THE RESPONDENTS
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON NOVEMBER 29, 1979, A COMPLAINT WAS ISSUED BY THE REGIONAL
DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS AUTHORITY, BOSTON,
MASSACHUSETTS, AGAINST THE INTERNAL REVENUE SERVICE, BOSTON DISTRICT
OFFICE (BDO) ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION (NTEU OF
UNION). AT THE HEARING THE COMPLAINT WAS AMENDED TO INCLUDE THE ANDOVER
SERVICE CENTER (ASC) OF THE INTERNAL REVENUE SERVICE AS A RESPONDENT.
THE BDO AND ASC ARE HEREINAFTER JOINTLY REFERRED TO AS RESPONDENTS. THE
COMPLAINT AS AMENDED ALLEGED THAT THE RESPONDENTS VIOLATED SECTIONS
7116(A)(1) AND (2) OF THE STATUTE BY REMOVING JAMES E. TACY FROM A
QUESTIONABLE REFUND DETECTION TEAM (QRDT) DETAIL AT THE ASC BECAUSE OF
HIS POSITION IN NTEU, AND BECAUSE OF HIS ACTIVITIES ON BEHALF OF NTEU
WHILE DETAILED TO WORK ON THE QRDT AT THE ASC.
COUNSEL REPRESENTING THE RESPONDENTS CONTENDED THAT THE GENERAL
COUNSEL HAS NOT PROVEN THE ALLEGED VIOLATIONS BY A PREPONDERANCE OF THE
EVIDENCE; THAT THE EVIDENCE ESTABLISHES THAT JAMES TACY WAS REMOVED
FROM THE QRDT DETAIL BY WILLIAM LIEBERMAN, CHIEF, COLLECTION DIVISION,
BDO, FOR LEGITIMATE BUSINESS REASONS HAVING NOTHING TO DO WITH UNION
ACTIVITY OR TACY'S UNION POSITION; THAT TACY WAS REMOVED FROM THE
DETAIL SOLELY BECAUSE HIS GS-12 REVENUE OFFICER GRADE LEVEL WAS TOO HIGH
FOR THE WORK INVOLVED; THAT NO EVIDENTIARY BASIS WAS ESTABLISHED FOR
INCLUDING THE ASC AS A RESPONDENT; AND LASTLY THAT THE TESTIMONY OF
TACY SHOULD BE STRICKEN AND THE COMPLAINT DISMISSED BECAUSE COUNSEL FOR
THE GENERAL COUNSEL VIOLATED THE CONFIDENTIALITY PROVISIONS OF 5 C.F.R.
2423.7(D) BY REVEALING THE CONTENT OF STATEMENTS OF RESPONDENTS' KEY
WITNESSES TO TACY PRIOR TO THE HEARING. /5/
ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
FOR THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY, AND THE
RESPONDENTS. THESE HAVE BEEN DULY CONSIDERED. /6/ BASED UPON THE
ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND
THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
THE MOTION TO STRIKE THE TESTIMONY OF JAMES TACY
WITH RESPECT TO THE ARGUMENT THAT THE TESTIMONY OF JAMES TACY SHOULD
BE STRICKEN, IT IS NOTED THAT DURING THE CROSS-EXAMINATION OF TACY IT
WAS ESTABLISHED THAT PRIOR TO THE HEARING, COUNSEL FOR THE GENERAL
COUNSEL PROVIDED TACY WITH COPIES OF STATEMENTS GIVEN BY KEY BDO
MANAGEMENT OFFICIALS DURING THE COURSE OF THE REGIONAL DIRECTOR'S
INVESTIGATION OF THE CHARGE (TR. 100-101). SECTIONS 2423.7(C) AND (D)
OF THE REGULATIONS, 5 C.F.R. 2423.7(C) AND (D) PROVIDE:
(C) IN CONNECTION WITH THE INVESTIGATION OF CHARGES, ALL PERSONS ARE
EXPECTED TO COOPERATE
FULLY WITH THE REGIONAL DIRECTOR.
(D) THE PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE CAN
BEST BE ACHIEVED BY THE FULL COOPERATION OF ALL PARTIES INVOLVED AND
THE VOLUNTARY SUBMISSION
OF ALL POTENTIALLY RELEVANT INFORMATION FROM ALL POTENTIAL SOURCES
DURING THE COURSE OF THE
INVESTIGATION. TO THIS END, IT SHALL BE THE POLICY OF THE AUTHORITY
AND THE GENERAL COUNSEL
TO PROTECT THE IDENTITY OF INDIVIDUALS AND THE SUBSTANCE OF THE
STATEMENTS AND INFORMATION
THEY SUBMIT OR WHICH IS OBTAINED DURING THE INVESTIGATION AS A MEANS
OF ASSURING THE
AUTHORITY'S AND THE GENERAL COUNSEL'S CONTINUING ABILITY TO OBTAIN
ALL RELEVANT INFORMATION.
THOSE FURNISHING STATEMENTS DURING THE INVESTIGATORY STAGE OF AN
UNFAIR LABOR PRACTICE CASE MUST OF NECESSITY BE CHARGED WITH KNOWLEDGE
THAT INFORMATION SUPPLIED WILL BE USED IN ASCERTAINING THE TRUTH, AND
THAT THIS WILL BE THE ONLY USE UNLESS DISCLOSURE OF SUCH INFORMATION IS
SUBSEQUENTLY MADE NECESSARY DURING THE COURSE OF A FORMAL HEARING OR IS
OTHERWISE DISCLOSED IN ACCORDANCE WITH LAW. IT IS CLEAR THAT DISCLOSURE
TO TACY OF STATEMENTS EXECUTED BY MANAGEMENT WITNESSES PRIOR TO THE
HEARING BREACHED FEDERAL LABOR RELATIONS AUTHORITY POLICY ARTICULATED IN
5 C.F.R. 2423.7(C) AND (D). IT MAY BE ASSUMED, IN LIGHT OF THIS POLICY,
THAT VOLUNTARY COOPERATION DURING THE INVESTIGATION OF UNFAIR LABOR
PRACTICES WOULD BE IMPAIRED BY SUCH BREACHES. MOREOVER, PROOF OF
DISCLOSURE OPERATES TO UNDERMINE THE CREDIBILITY OF ANY WITNESS PROVIDED
WITH THE OPPORTUNITY TO REVIEW OPPOSITION STATEMENTS IN ADVANCE OF THE
HEARING. /7/
DESPITE THE FOREGOING THERE WOULD BE NO BASIS FOR EXCLUDING THE
TESTIMONY OF A WITNESS FOR A BREACH OF THE REGULATORY PROVISIONS QUOTED.
COUNSEL FOR THE RESPONDENTS WAS PROVIDED WITH AN OPPORTUNITY TO ATTACK
THE CREDIBILITY OF TACY ON THIS AND OTHER GROUNDS. THE RIGHT TO EXPOSE
THROUGH CROSS-EXAMINATION, DETAILS OF HOW A WITNESS PREPARED TO TESTIFY,
AND THE RIGHT TO POINT OUT OTHER WEAKNESSES IN THE PROBATIVE VALUE OF
SUCH TESTIMONY MUST BE DEEMED A SUFFICIENT REMEDY IN THE ABSENCE OF ANY
STATUTORY OR REGULATORY BASIS FOR APPLYING AN EXCLUSIONARY RULE.
FINDINGS OF FACT
THE DETAIL
AT ALL TIMES RELEVANT HEREIN BARGAINING UNIT EMPLOYEES IN THE BDO
WERE REPRESENTED BY THE NTEU AS THE EXCLUSIVE BARGAINING REPRESENTATIVE;
AND THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ASC BARGAINING UNIT
EMPLOYEES WAS THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE)
(TR. 39-40). DURING THE PERIODS HEREIN INVOLVED THE NTEU WAS
ENDEAVORING TO ORGANIZE EMPLOYEES AT THE ASC FOR THE PURPOSE OF
ESTABLISHING A BASIS FOR NTEU'S CERTIFICATION AS EXCLUSIVE BARGAINING
REPRESENTATIVE OF ASC EMPLOYEES.
INTERNAL REVENUE SERVICE CENTERS, INCLUDING THE ASC, WERE GIVEN
RESPONSIBILITY FOR IMPLEMENTATION OF THE QRDT PROGRAM BY AN INTERNAL
REVENUE MANUAL SUPPLEMENT DATED JANUARY 16, 1978. THE PROGRAM, PLACED
UNDER THE FUNCTIONAL SUPERVISION OF THE CHIEF OF THE CENTER'S CRIMINAL
INVESTIGATION BRANCH, WAS DESIGNED TO DETECT AND WEED OUT FRAUDULENT TAX
RETURNS. THE STAFF OF THE QRDT CONSISTED OF EMPLOYEES FROM VARIOUS ASC
AND BDO UNITS. IN JANUARY OF 1978, THE BDO WAS FIRST ASKED TO PROVIDE
MEMBERS FOR THE TEAM. TWO GS-11 REVENUE OFFICERS, HENRY LAWLER AND
TIMOTHY HARRIGAN, WERE SELECTED AND SERVED ON THE DETAIL (TR. 200-201,
298-299).
AN INTERNAL REVENUE MANUAL SUPPLEMENT DATED JANUARY 25, 1979,
PROVIDED A BASIS FOR RECONSTITUTING A DETAIL AT EACH INTERNAL REVENUE
SERVICE CENTER DURING THE 1979 FILING REASON. /8/ THE MANUAL SUPPLEMENT
PROVIDED FOR ONE REVENUE OFFICER MEMBER AND STATED FURTHER THAT THE
"COLLECTION BRANCH MEMBER SHOULD BE THE REVENUE OFFICER WHO REVIEWS
INFORMATION ITEMS AT THE SERVICE CENTER." (JOINT EXHIBIT 1, SEC. 4.10
AND SEC. 4.16). /9/ THE MANUAL SUPPLEMENT MANDATES THAT A REVENUE
OFFICER BE SELECTED, BUT DID NOT SPECIFY A GRADE LEVEL (TR. 330-332);
HOWEVER, A GS-12 REVENUE OFFICER WAS THEN ASSIGNED TO REVIEW INFORMATION
ITEMS AT THE ASC, AND, AS NOTED, THE MANUAL SUPPLEMENT INDICATED THAT
THIS EMPLOYEE WOULD NORMALLY HAVE BEEN DESIGNATED AS THE DETAILEE. /10/
FOLLOWING THE 1978 DETAIL, REVENUE OFFICERS LAWLER AND HARRIGAN
DRAFTED A JULY 21, 1978 MEMORANDUM ANALYZING THE QRDT DETAIL FOR PAUL M.
HARRINGTON, THEIR BRANCH CHIEF. THE MEMORANDUM CONCLUDED THAT REVENUE
OFFICER FUNCTIONS HAD BEEN UNDER UTILIZED DURING THE DETAIL (GENERAL
COUNSEL EXHIBIT 8). ON AUGUST 28, 1978, THE LAWLER-HARRIGAN MEMORANDUM
WAS FORWARDED TO BDO COLLECTION DIVISION CHIEF, WILLIAM LIEBERMAN
(RESPONDENTS' EXHIBIT 11). LIEBERMAN AND HIS ASSISTANT DIVISION CHIEF,
LEWIS DAY, READ THE MEMORANDUM BEFORE FILING IT. THE RECORD REFLECTS
THAT LIEBERMAN READ THE LAWLER-HARRIGAN MEMORANDUM "ALL THE WAY THROUGH"
ON OR ABOUT AUGUST 28, 1978 (TR. 299-300, 325, 334). LEWIS DAY,
ASSISTANT CHIEF OF THE COLLECTION DIVISION, BDO, READ THE MEMORANDUM
DURING THE SUMMER OF 1978 SHORTLY AFTER THE DOCUMENT WAS SUBMITTED TO
BRANCH CHIEF HARRINGTON (TR. 203, 228, 235).
TACY SELECTED FOR QRDT
THE NEED FOR A REVENUE OFFICER FOR THE QRDT WAS MENTIONED TO LEWIS
DAY, ASSISTANT CHIEF OF THE COLLECTION DIVISION, BDO, BY REVENUE OFFICER
DAN DI GIANDOMENICO (TR. 204). DAY ASKED DI GIANDOMENICO TO SEE IF HE
COULD OBTAIN A VOLUNTEER FOR THE DETAIL BY CONTACTING THOMAS PETERSON, A
BDO COLLECTION DIVISION FIELD BRANCH CHIEF IN WORCESTER, MASSACHUSETTS
(TR. 206), AS PETERSON'S AREA WAS IN CLOSE PROXIMITY TO THE ASC (TR.
225-226).
THE RECORD DISCLOSED THAT ON OR ABOUT JANUARY 25, 1979, DI
GIANDOMENICO ASKED TACY WHO WOULD BE DETAILED TO THE QRDT (TR. 58, 75).
TACY A REVENUE OFFICER ASSIGNED TO THE BDO'S LAWRENCE POST OF DUTY, WAS
THEN ACTING PRESIDENT, STEWARD AND NEGOTIATOR FOR NTEU CHAPTER 23, THE
EXCLUSIVE BARGAINING REPRESENTATIVE FOR THE BDO (TR. 140-141). /11/
THEREAFTER, GROUP MANAGER ALEXANDER LAMIE, TACY'S IMMEDIATE SUPERVISOR
IN THE LAWRENCE OFFICE RECEIVED A TELEPHONE CALL FROM TACY. TACY
INQUIRED ABOUT THE DETAIL AND VOLUNTEERED HIS SERVICES (TR. 246). TACY
VOLUNTEERED FOR THE DETAIL TO BE IN A POSITION TO HELP ORGANIZE THE ASC
FOR THE NTEU (TR. 94). LAMIE ADVISED TACY THAT HE WOULD PHONE BRANCH
CHIEF THOMAS PETERSON ABOUT THE MATTER (TR. 246).
ON THE DAY AFTER TACY'S CALL, LAMIE SPOKE TO LEWIS DAY ON THE PHONE
AND LEARNED THAT SOMEONE WOULD BE SELECTED (TR. 246-247). LAMIE
MENTIONED TO DAY THAT TACY WAS INTERESTED, AND IN RESPONSE TO DAY'S
INQUIRY, APPRISED DAY THAT LAMIE HAD NO OBJECTION TO THE ASSIGNMENT OF
TACY TO THE DETAIL (TR. 247). LAMIE SUBSEQUENTLY WAS TELEPHONICALLY
ADVISED BY BRANCH CHIEF PETERSON THAT HE (PETERSON) INTERPOSED NO
OBJECTION TO TACY'S SELECTION (TR. 247). LAMIE ACKNOWLEDGED THAT IT IS
"ALWAYS NICE TO HAVE VOLUNTEERS" FOR SUCH DETAILS AND THAT VOLUNTEERS
FOR DETAILS WERE PREFERRED (TR. 258).
ALTHOUGH THE EXACT SEQUENCE OF ALL DISCUSSIONS LEADING TO TACY'S
SELECTION IS NOT REFLECTED IN THE RECORD, IT DOES CLEARLY APPEAR THAT
PETERSON PHONED DAY AND INFORMED DAY THAT TACY HAD VOLUNTEERED (TR. 206,
239-240). THIS CONVERSATION OCCURRED DURING THE LATTER PART OF THE WEEK
OF JANUARY 22, 1979 (TR. 206-207, 226-227). DURING THIS CONVERSATION
DAY APPROVED TACY'S ASSIGNMENT (TR. 206, 239). TACY'S GRADE LEVEL DID
NOT ENTER INTO THE DECISION (TR. 235-236, 242). DAY STATED THAT HE "WAS
JUST PLEASED THAT WE HAD A VOLUNTEER IN THE AREA THAT WOULD GO OVER TO
THE SERVICE CENTER AND PERFORM THIS TASK" (TR. 242). IN RESPONSE TO
QUESTIONING HE EXPLAINED:
IRS CAN DETAIL ANYBODY THEY CHOOSE IF IT IS TO THE ADVANTAGE OF THE
ORGANIZATION. WHAT I'M
SAYING IS AT THE TIME WE WERE SEEKING A DETAILEE, WHEN I HEARD THAT
WE HAD A VOLUNTEER, THE
GRADE LEVEL OF THE INDIVIDUAL WHO HAD VOLUNTEERED DID NOT ENTER MY
MIND. IT WASN'T A
CONSIDERATION AT THAT PARTICULAR TIME (TR. 243). THE ONLY
REQUIREMENTS WHICH HAD BEEN IMPOSED UPON PETERSON BY DAY WERE THAT THE
DETAILEE BE SOMEONE IN THE ASC AREA, THAT THE DETAIL BE FOR NINETY DAYS,
AND "IF POSSIBLE, AND PREFERABLY A VOLUNTEER" (TR. 243).
THE RECORD DISCLOSES THAT THE ACTUAL DECISION TO SELECT TACY WAS MADE
BY LEWIS DAY ON BEHALF OF WILLIAM LIEBERMAN. HOWEVER, PRIOR TO TACY'S
SELECTION LIEBERMAN WAS WELL AWARE THAT THE BDO HAD THE RESPONSIBILITY
OF SUPPLYING AN EMPLOYEE TO FILL THE DETAIL AT THE ASC (TR. 330). IN
ADDITION, DAY HAD ADVISED LIEBERMAN OF THE NEED TO FILL THE DETAIL
DURING DAY'S INITIAL STEPS TO LOCATE SOMEONE (TR. 300). AT THAT TIME
LIEBERMAN INSTRUCTED DAY BY SAYING, "(L)ET'S GET IT OUT OF THE LAWRENCE
OFFICE. IT'S THE NEAREST POST OF DUTY" (TR. 300). THIS DISCUSSION
OCCURRED DURING THE WEEK OF JANUARY 22, 1979 (TR. 226-227).
FROM DAY, LIEBERMAN LEARNED THAT DAY HAD COMPLETED THE SEARCH. THIS
OCCURRED ON OR ABOUT THURSDAY, JANUARY 25, 1979, FRIDAY, JANUARY 26,
1979, OR MONDAY, JANUARY 29, 1979 (TR. 209, 227, 335-336). ON THIS
OCCASION DAY DISCUSSED THE DETAIL WITH LIEBERMAN AND TOLD HIM THAT TACY
HAD VOLUNTEERED AND THAT HE HAD BEEN SELECTED (TR. 209, 301, 318-319).
/12/ LIEBERMAN WAS WELL AWARE OF TACY'S GRADE LEVEL AT THE TIME THAT DAY
APPRISED HIM OF TACY'S SELECTION (TR. 319). HE HAD PREVIOUSLY HAD
NUMEROUS CONTACTS WITH TACY IN THE BDO IN CONNECTION WITH UNION BUSINESS
(TR. 317). LIEBERMAN INFORMED DAY THAT HE APPROVED THE SELECTION (TR.
318-319, 335).
FOLLOWING APPROVAL OF TACY IN THE MANNER OUTLINED, ALEXANDER LAMIE
INFORMED TACY THAT HE HAD BEEN SELECTED. HE REPORTED FOR WORK AT THE
ASC ON TUESDAY, JANUARY 30, 1979 (TR. 248).
LIEBERMAN-COLEMAN TELEPHONE CONVERSATION
THE RECORD DISCLOSES THAT AT SOME POINT DURING THE PERIOD IN ISSUE,
LIEBERMAN, WHILE IN THE BDO, RECEIVED A TELEPHONE CALL FROM THOMAS
COLEMAN, ASSISTANT REGIONAL COMMISSIONER FOR COLLECTIONS IN THE NORTH
ATLANTIC REGIONAL OFFICE, NEW YORK CITY. COLEMAN INQUIRED CONCERNING
UNION ACTIVITY BEING PERFORMED BY A BDO EMPLOYEE ON DETAIL AT THE ASC.
THE DATE ON WHICH THIS CALL WAS MADE IS OF IMPORTANCE SINCE THE
RESPONDENTS CONTEND THAT THE CALL WAS MADE AFTER LIEBERMAN TERMINATED
THE TACY DETAIL. COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT THE CALL
PRECEDED LIEBERMAN'S DECISION TO TERMINATE THE DETAIL AND THAT THE
REMOVAL WAS EFFECTED SOLELY, OR IN PART, BECAUSE OF TACY'S NTEU
ACTIVITY.
COLEMAN, A KEY INTERNAL REVENUE SERVICE OFFICIAL IN THE NORTH
ATLANTIC REGIONAL OFFICE IN NEW YORK CITY, WAS LIEBERMAN'S SUPERIOR, AND
SUPERVISED COLLECTION ACTIVITIES PERFORMED BY LIEBERMAN'S DIVISION (TR.
155-156, 193). THE CALL IN QUESTION WAS MADE FIVE MINUTES AFTER COLEMAN
MET IN NEW YORK CITY WITH ONE WILLIAM ETHE, EXECUTIVE ASSISTANT REGIONAL
COMMISSIONER OF RESOURCE MANAGEMENT (TR. 175). COLEMAN HAD STOPPED IN
TO SEE ETHE AT ETHE'S REQUEST (TR. 159, 187). ETHE ASKED COLEMAN IF HE
(COLEMAN) WAS AWARE OF A COLLECTION DIVISION EMPLOYEE OR A REVENUE
OFFICER DETAILED TO THE ASC, WHO WAS ALLEGED TO BE ENGAGING IN UNION
ACTIVITY (TR. 159, 174-175, 182). COLEMAN VOLUNTEERED TO INQUIRE
FURTHER AFTER ETHE POSED THE QUESTION (TR. 183-184). COLEMAN WAS THE
PROPER PARTY FOR ETHE TO CONTACT ON THIS MATTER BECAUSE THE INQUIRY
INVOLVED A SUBJECT FALLING WITHIN COLEMAN'S AREA OF RESPONSIBILITY (TR.
194).
AS NOTED COLEMAN PHONED LIEBERMAN ABOUT FIVE MINUTES AFTER HIS
DISCUSSION WITH ETHE. THE PURPOSE IN MAKING THE CALL WAS DESCRIBED BY
COLEMAN IN THESE TERMS DURING DIRECT EXAMINATION BY COUNSEL REPRESENTING
THE RESPONDENTS"
Q. WHAT WAS YOUR INTENTION WITH REGARD TO INQUIRY ABOUT THE DETAIL?
A. TO SEE IF I COULD REPLY TO MR. ETHE, TO TRY AND FIND OUT FROM MR.
LIEBERMAN IF HE HAD
SOME KNOWLEDGE OF SOME INCIDENT AT THE CENTER (TR. 162-163).
COLEMAN ADMITTED THAT HE ASKED LIEBERMAN IF HE WAS AWARE OF A REVENUE
OFFICER WHO WAS DETAILED TO THE ASC, AND WAS ALLEGED TO BE ENGAGING IN
UNION ACTIVITY (TR. 160-161, 179, 184). AT OTHER POINTS COLEMAN
ACKNOWLEDGED THAT HE BROUGHT UP THE ASC DETAIL DIRECTLY BECAUSE, "THAT
WAS THE REASON I MADE THE CALL" (TR. 173), AND THAT HE PHONED LIEBERMAN
BECAUSE THE COLLECTION DIVISION EMPLOYEE INVOLVED WOULD HAVE COME FROM
THE BDO (TR. 177). COLEMAN WAS ALSO AWARE THAT THE ASC WAS THE ONLY
SERVICE CENTER NOT ORGANIZED BY THE NTEU, THAT IT WAS COMMON KNOWLEDGE
THAT NTEU WISHED TO ORGANIZE THE ASC, AND FURTHER THAT UNION ACTIVITY
WAS A MATTER OF GENERAL CONCERN TO THE INTERNAL REVENUE SERVICE (TR.
178-179).
LIEBERMAN ACKNOWLEDGED THAT COLEMAN SAID THAT HE (COLEMAN) HAD HEARD
THERE WAS A REVENUE OFFICER UNION OFFICIAL WHO WAS ENGAGING IN UNION
RECRUITING PRACTICES AT THE ASC (TR. 309), AND THAT THE UNION OFFICIAL
WAS "FROM BOSTON DOING SOME UNION WORK OUT THERE ON A DETAIL . . ." (TR.
333).
LIEBERMAN APPRISED COLEMAN THAT HE HAD ALREADY TERMINATED THE DETAIL
AND THAT THE EMPLOYEE HAD BEEN REMOVED (TR. 180, 184, 160, 162, 167).
COLEMAN RESPONDED BY SAYING, "OKAY. FINE" (TR. 160, 162). LIEBERMAN
ALSO ADVISED COLEMAN THAT THE DETAIL HAD BEEN TERMINATED BECAUSE OF THE
LEVEL OF DIFFICULTY OF THE WORK (TR. 162, 184, 309-310, 333). COLEMAN
WAS SATISFIED THAT LIEBERMAN'S TERMINATION OF THE DETAIL HAD RESOLVED
WHAT HE DEEMED TO BE A PROBLEM (TR. 180). /13/
AFTER COLEMAN'S TELEPHONE CONVERSATION WITH LIEBERMAN, COLEMAN
REPORTED BACK TO ETHE BY PHONE "PROBABLY THE SAME DAY," AND TOLD ETHE
THAT HE HAD TALKED WITH BILL LIEBERMAN AND THAT "THE DETAIL HAD BEEN
TERMINATED" (TR. 188). /14/
DATE OF COLEMAN-LIEBERMAN CONVERSATION
THE EXACT DATE OF THIS CONVERSATION COULD NOT BE SPECIFICALLY
DETERMINED FROM THE RECORD. COLEMAN TESTIFIED THAT THE CONVERSATION
PROBABLY OCCURRED ON FRIDAY, FEBRUARY 2, 1979 OR MONDAY, FEBRUARY 5,
1979 (TR. 163-164, 171, 180-181). HOWEVER, COLEMAN WAS NOT AT ALL
CERTAIN OF THIS. THE DATES WERE SELECTED THROUGH A SPECULATIVE PROCESS
OF ELIMINATION (TR. 164-166, 171, 179); HE HAD NO WRITTEN RECORD OF THE
CONVERSATION (TR. 171); AND HE COULD RECALL NO OTHER TELEPHONE
CONVERSATIONS ON THESE DATES WITH SPECIFICITY (TR. 170-172). HE DID NOT
BEGIN TO THINK ABOUT THE DATE OF THE TELEPHONE CALL UNTIL A WEEK OR TEN
DAYS BEFORE THE HEARING (TR. 172).
LIEBERMAN'S RECOLLECTION OF THE CALL NARROWS THE DATE DOWN TO FRIDAY,
FEBRUARY 2, 1979 (TR. 309, 332, 340), AROUND LUNCH TIME (TR. 340).
HOWEVER, IT IS CLEAR FROM THE RECORD THAT LIEBERMAN WAS NOT AT ALL
CERTAIN OF THE DATE. HE ALSO DEPENDED UPON A SPECULATIVE PROCESS OF
ELIMINATION (TR. 308-309, 340-341). HIS TESTIMONY WAS NOT AT ALL
CERTAIN ON THIS POINT (TR. 332); HE MADE NO MEMORANDUM OF THE CALL (TR.
340); AND HE WAS VAGUE ABOUT IMPORTANT DETAILS OF THE CONVERSATION (TR.
333-334).
TERMINATION OF TACY DETAIL
LIEBERMAN TESTIFIED THAT PRIOR TO TUESDAY, JANUARY 30, 1979, THE DATE
ON WHICH TACY REPORTED FOR THE DETAIL, HE RECALLED THE CONTENT OF THE
JULY 21, 1978 LAWLER-HARRIGAN MEMORANDUM WHICH HAD CONCLUDED THAT
REVENUE OFFICER FUNCTIONS HAD BEEN UNDER UTILIZED ON THE QRDT DURING THE
1978 FILING SEASON (TR. 320). HOWEVER, HIS TESTIMONY AS TO THE EXACT
DATE OF HIS RECOLLECTION WAS UNCERTAIN. HE AT FIRST TESTIFIED THAT HE
RECALLED THE MEMORANDUM ON MONDAY, JANUARY 29, 1979, OR TUESDAY, JANUARY
30, 1979 (TR. 301). HE THEN MODIFIED HIS TESTIMONY BY STATING FIRMLY
THAT HE RECALLED THE MEMORANDUM BETWEEN FRIDAY, JANUARY 26, 1979, AND
MONDAY, JANUARY 29, 1979 (TR. 319-320). /15/ HE STATED THAT UPON
RECALLING THE MEMORANDUM HE ASKED HIS SECRETARY TO OBTAIN A COPY FOR HIM
FROM THE FILES, THAT SHE DID SO, THAT HE RE-READ IT, AND THAT HE ALSO
RECEIVED THE MANUAL SUPPLEMENT WITH RESPECT TO THE QRDT (TR. 301-302,
319-320).
LIEBERMAN TESTIFIED THAT ON TUESDAY, JANUARY 30, 1979, HE REACHED THE
CONCLUSION THAT TACY WAS TOO HIGHLY GRADED FOR THE DETAIL, BUT THAT HE
WISHED TO DISCUSS THE DETAIL WITH DAY, HIS ASSISTANT DIVISION CHIEF,
BEFORE TAKING ANY ACTION (TR. 321). /16/ LIEBERMAN DID DISCUSS THE
DETAIL WITH DAY EARLY IN THE MORNING ON THURSDAY, FEBRUARY 1, 1979, JUST
PRIOR TO A BDO COLLECTION DIVISION BRANCH CHIEFS' MEETING. THE BRANCH
CHIEFS' MEETING FOLLOWED THE LIEBERMAN-DAY CONFERENCE, AND DURING THE
MEETING LIEBERMAN DISCUSSED THE TACY DETAIL AND ANNOUNCED HIS DECISION
TO CANCEL TACY'S APPOINTMENT. HE REQUESTED THOMAS PETERSON TO FIND A
REPLACEMENT WHO WAS NOT A GS-12 (TR. 306-307, 322). /17/
ON THURSDAY, FEBRUARY 1, 1979, LATE IN THE AFTERNOON, PETERSON PHONED
ALEXANDER LAMIE IN LAWRENCE, MASSACHUSETTS, FROM WORCESTER,
MASSACHUSETTS, AND INFORMED LAMIE OF LIEBERMAN'S DECISION TO TERMINATE
TACY'S DETAIL BECAUSE TACY'S GRADE LEVEL WAS TOO HIGH (TR. 250-251,
273-274). LAMIE TESTIFIED:
HE (PETERSON) TOLD ME THAT I SHOULD CALL JIM TACY RIGHT AWAY, TELL
HIM THAT HIS DETAIL WAS
BEING TERMINATED FOR THAT REASON, AND THAT I SHOULD SEND SOMEONE ELSE
OVER ON THE DETAIL
(TR. 250). LAMIE ADVISED PETERSON THAT HE DID NOT KNOW WHO HE WOULD
SELECT AS A REPLACEMENT BUT THAT HE WANTED TO "SLEEP ON IT OVERNIGHT"
AND MAKE HIS DECISION THE NEXT MORNING. (TR. 271).
TACY QUESTIONS TERMINATION OF DETAIL
LAMIE DID PHONE TACY ON THURSDAY, FEBRUARY 1, 1979, OR FRIDAY,
FEBRUARY 2, 1979, TO ADVISE HIM OF THE DECISION (TR. 79, 95, 256-257).
/18/ HE INSTRUCTED HIM TO REPORT BACK TO HIS LAWRENCE POST OF DUTY ON
MONDAY, FEBRUARY 5, 1979 (TR. 251). TACY WAS UNHAPPY WITH THE
INSTRUCTIONS RECEIVED FROM LAMIE, AND SAID THAT HE THOUGHT THAT HE WAS
BEING "YANKED OFF THE DETAIL" BECAUSE OF HIS UNION ACTIVITIES AT THE ASC
(TR. 251).
TACY IMMEDIATELY TELEPHONED THOMAS PETERSON AT THE NEXT MANAGEMENT
LEVEL (TR. 73, 99, 103). IN RESPONSE TO TACY'S QUESTION CONCERNING THE
REASON FOR TERMINATION OF THE DETAIL, PETERSON REPLIED THAT HE WAS TOO
HIGHLY GRADED FOR THE JOB (TR. 73). TACY THEN PHONED LIEBERMAN (TR.
103). /19/ LIEBERMAN TESTIFIED THAT HE RECEIVED THE CALL FROM COLEMAN
AFTER HE RECEIVED TACY'S CALL; HOWEVER, AS NOTED, IT IS CLEAR THAT
CERTAINTY WITH RESPECT TO THE DATE OF THE COLEMAN TELEPHONE CALL WAS NOT
ESTABLISHED BY LIEBERMAN OR COLEMAN. /20/
THERE IS NO ISSUE CONCERNING CERTAIN ELEMENTS OF THE TACY-LIEBERMAN
CONVERSATION. IT WAS ESTABLISHED THAT TACY ASKED LIEBERMAN WHY HE HAD
BEEN TAKEN OFF THE DETAIL AND THAT LIEBERMAN EXPLAINED THAT TACY WAS TOO
HIGHLY GRADED FOR THE WORK (TR. 73, 104, 312). TACY THEN ASKED IF THE
ACTION HAD ANYTHING TO DO WITH TACY'S ACTIVITIES ON BEHALF OF THE UNION.
LIEBERMAN DENIED THAT IT DID, BUT ALSO ADDED, "(S)INCE YOU BROUGHT IT
UP, DID YOU ENGAGE IN ANY?" /21/
TACY TESTIFIED THAT DURING THE TELEPHONE CONVERSATION LIEBERMAN
ADMITTED THAT HE HAD, THAT DAY, (FEBRUARY 2, 1979), RECEIVED A TELEPHONE
CALL FROM THOMAS COLEMAN; THAT COLEMAN SAID THAT TACY WAS CONDUCTING
NTEU BUSINESS AT THE ASC; AND THAT LIEBERMAN SHOULD "GET (TACY) OUT OF
THERE" (TR. 74, 105, 118). LIEBERMAN DENIED THAT HE MENTIONED THE
COLEMAN CONVERSATION (TR. 312). THE RECORD REFLECTS THAT TACY PREPARED
THREE WRITTEN STATEMENTS CONCERNING FACTS RELATING TO THIS CASE. THE
FIRST TWO BEAR UPON THIS FACTUAL ISSUE. RESPONDENTS' EXHIBIT 2, AN
UNDATED LETTER ADDRESSED TO THE NTEU ON FEBRUARY 2, 1979, THE DATE OF
THE TACY-LIEBERMAN CONVERSATION, REFLECTS NO REFERENCE AT ALL TO THE
COLEMAN-LIEBERMAN TELEPHONE CONVERSATION. AN UNDATED MEMORANDUM,
CAPTIONED "OFF THE RECORD," (RESPONDENTS' EXHIBIT 3) WAS, ACCORDING TO
TACY'S TESTIMONY, PREPARED ON FRIDAY, FEBRUARY 2, 1979, ABOUT THE SAME
TIME AS RESPONDENTS' EXHIBIT 2, AND THEN FORWARDED TO NTEU TOGETHER WITH
RESPONDENTS' EXHIBIT 2 (TR. 96-97, 118-119). THE UNDATED "OFF THE
RECORD" MEMORANDUM, REFERS TO THE COLEMAN-LIEBERMAN TELEPHONE CALL, BUT
CLEARLY REFLECTS ON ITS FACE THAT IT COULD NOT HAVE BEEN PREPARED ON
FRIDAY, FEBRUARY 2, 1979. IT ALSO ESTABLISHES THAT TACY'S RECEIPT OF
INFORMATION CONCERNING THE COLEMAN CALL COULD NOT HAVE EMANATED FROM THE
TACY-LIEBERMAN CONVERSATION ON FEBRUARY 2, 1979. /22/ RESPONDENTS'
EXHIBIT 4, A LETTER DATED MARCH 5, 1979, ADDRESSED TO THE RESPONDENTS BY
THE UNION OUTLINES THE SUBSTANCE OF AN INITIAL VERSION OF THE CHARGE.
/23/ THIS DOCUMENT CLOSELY PARALLELS TACY'S INITIAL WRITTEN REPORT
(RESPONDENTS' EXHIBIT 2) OF THE TACY-LIEBERMAN CONVERSATION. IT
REFLECTS NO REFERENCE TO THE COLEMAN-LIEBERMAN TELEPHONE CALL.
ALTHOUGH THE RECORD SHOWS CONCLUSIVELY THAT TACY DID NOT LEARN OF THE
COLEMAN TELEPHONE CALL DURING THE FEBRUARY 2, 1979 TACY-LIEBERMAN
TELEPHONE CONVERSATION, IT IS NOT NECESSARY TO DETERMINE EXACTLY HOW
TACY CAME INTO POSSESSION OF INFORMATION CONCERNING THE
COLEMAN-LIEBERMAN CONVERSATION. /24/
TACY'S UNION ACTIVITY AT ASC
ALTHOUGH THE POST-HEARING BRIEF SUBMITTED ON BEHALF OF RESPONDENTS
ENDEAVORED TO SHOW THAT TACY DID NOT ENGAGE IN NTEU ORGANIZATIONAL
ACTIVITY DURING HIS SHORT PERIOD OF DUTY AT THE ASC, THE RECORD REFLECTS
THE CONTRARY. THE COLEMAN-ETHE AND COLEMAN-LIEBERMAN CONVERSATIONS
ESTABLISH THE NATURE OF TACY'S NTEU ACTIVITY AT THE ASC. THE INTEREST
OF LAMIE AND LIEBERMAN AS EXPRESSED IN THE QUESTIONING OF TACY AFTER
TACY'S RETURN TO THE BDO ALSO OPERATE TO ESTABLISH THAT TACY ENGAGED IN
SUCH ACTIVITY. THESE ELEMENTS REFLECT CORROBORATION OF TACY'S OWN
EXTENSIVE TESTIMONY ON THIS SUBJECT. TACY DISTRIBUTED NTEU BROCHURES,
FLYERS AND PETITIONS. HE PASSED OUT AN NTEU NEWSPAPER, AND HE ATTENDED
AN NTEU ORGANIZATIONAL MEETING ON FEBRUARY 1, 1979. THE RECORD
ESTABLISHED THAT THIS ACTIVITY OCCURRED DURING NON-DUTY PERIODS. NO
ISSUE WAS RAISED CONCERNING ANY IRREGULARITY IN THIS REGARD. /25/ JOHN
KELLY, A FELLOW EMPLOYEE CORROBORATED THE FACT THAT TACY CARRIED NTEU
PAMPHLETS IN AN EXPOSED POCKET.
TACY REPLACED
ON FRIDAY, FEBRUARY 2, 1979, MARIAN SMITH, A REVENUE OFFICER ASSIGNED
TO THE LAWRENCE POST OF DUTY WAS SELECTED TO REPLACE TACY (TR. 254-255,
268, 271-272). SHE OPPOSED HER ASSIGNMENT TO THE DETAIL (TR. 269). HER
CASE WORK WAS REASSIGNED (TR. 269-270), AND SHE REPORTED FOR WORK ON THE
QRDT ON MONDAY, FEBRUARY 5, 1979.
LAMIE-TACY CONVERSATIONS DURING WEEK OF
FEBRUARY 5, 1979, AND DURING SEPTEMBER 1979
TACY RETURNED TO WORK ON MONDAY, FEBRUARY 5, 1979 AT THE LAWRENCE
POST OF DUTY. HE WAS ASSIGNED AN INVENTORY OF CASES (TR. 74). DURING
THE FIRST WEEK AFTER HIS RETURN LAMIE INITIATED A CONVERSATION BY ASKING
HIM. "WHAT IS GOING ON AT THE SERVICE CENTER?" (TR. 252, 264). TACY
RELATED DETAILS OF INFORMATION CONCERNING THE NTEU ORGANIZING CAMPAIGN
AT THE CENTER (TR. 252-253, 265-266), AND THEN LAMIE INQUIRED WHETHER
TACY WAS INVOLVED IN ANY UNION ACTIVITY AT THE CENTER (TR. 266). LAMIE
ALSO ACKNOWLEDGED A SUBSEQUENT CONVERSATION WITH TACY DURING SEPTEMBER
OF 1979, WHEREIN HE (LAMIE) BROUGHT UP THE SUBJECT OF THE INSTANT UNFAIR
LABOR PRACTICE CASE, AND ASKED WHAT HE (TACY) EXPECTED TO DERIVE FROM IT
(TR. 254, 267-268). /26/
BDO DETAIL POLICY
THE RECORD REVEALED THAT IT WAS AN ESTABLISHED BDO POLICY TO SOLICIT
VOLUNTEERS FOR DETAILS OF THE TYPE HERE INVOLVED SO AS TO MINIMIZE THE
DISRUPTION OF EMPLOYEE WORK ACTIVITY (TR. 229, 322-323). THE DETAILING
OF A REVENUE OFFICER INVOLVED INVENTORYING THE CASE LOAD OF THE EMPLOYEE
AND REASSIGNING SUCH CASES TO OTHERS (TR. 256-259). WORK IN PROGRESS
HAD TO BE REVIEWED BY OTHERS IN ORDER FOR THEM TO DEVELOP A WORKING
UNDERSTANDING OF THE NEW CASE ASSIGNMENTS (TR. 258-259). LAMIE
TESTIFIED THAT A PREMATURE ASSIGNMENT BACK FROM A DETAIL HAD NEVER
OCCURRED BEFORE (TR. 260). LIEBERMAN STATED THAT HE HAD NEVER
TERMINATED A DETAIL PREMATURELY BEFORE (TR. 321). MANAGEMENT STATEMENTS
TO THE EFFECT THAT IT WAS BDO POLICY NOT TO DETAIL GS-12 EMPLOYEES FOR
ANY TYPE OF ASSIGNMENT WERE DISCREDITED BY ADMISSIONS BY DAY AND
LIEBERMAN THAT GS-12 REVENUE OFFICERS WERE REGULARLY DETAILED OUT AS
INSTRUCTORS (TR. 225, 232-233, 297), AND BY THE MANUAL SUPPLEMENT
PROVISION WHICH OPERATED TO REQUIRE AN EMPLOYEE AT THE GS-12 LEVEL FOR
THE QRDT. /27/
DISCUSSION, CONCLUSIONS AND RECOMMENDATION
SECTION 7102 OF THE STATUTE PROVIDES IN PART THAT EMPLOYEES (AS
DEFINED) "SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF SUCH RIGHT." SECTIONS 7116(A)(1) AND (2) OF THE STATUTE
PROVIDE FURTHER:
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
(2) TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION
BY DISCRIMINATION IN
CONNECTION WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF
EMPLOYMENT;
IN ORDER TO FIND A SECTION 7116(A)(2) VIOLATION THE EVIDENCE MUST
SHOW THAT AGENCY MANAGEMENT DISCRIMINATIVELY AFFECTED EMPLOYEE TERMS
AND
CONDITIONS OF EMPLOYMENT BASED ON UNION CONSIDERATIONS. FURTHER, SUCH A
VIOLATION WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A
LEGITIMATE BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION
CONSIDERATIONS ALSO ARE SHOWN TO HAVE PLAYED A PART. DIRECTORATE OF
SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE
LOGISTICS AGENCY, ASSISTANT SECRETARY CASE NO. 22-08768 (CA), 2 FLRA NO.
118 (MARCH 21, 1980); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER,
CHICAGO, ILLINOIS, ASSISTANT SECRETARY CASE NO. 50-17077 (CA), 2 FLRA
NO. 12(NOVEMBER 29, 1979), REPORT NO. 21; VETERANS ADMINISTRATION
CENTER, LEAVENWORTH, KANSAS, ASSISTANT SECRETARY CASE NO. 60-5847 (CA),
1 FLRA NO. 111(SEPTEMBER 20, 1979), REPORT NO. 17; DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, SAN JUAN,
PUERTO RICA, A/SLMR NO. 1127(1978).
THE RECORD ESTABLISHES THAT TACY'S ACTIVITIES ON BEHALF OF NTEU AT
THE ASC INVOLVED PROTECTED RIGHTS UNDER SECTION 7102 OF THE STATUTE, AND
FURTHER THAT THE REMOVAL OF TACY WAS AN ADMINISTRATIVE DECISION DIRECTLY
RELATED TO THE TERMS AND CONDITIONS OF TACY'S EMPLOYMENT. THE ISSUES
POSED HEREIN ARE WHETHER THE RESPONDENTS INTERFERED WITH, RESTRAINED OR
COERCED TACY IN THE EXERCISE OF THESE PROTECTED RIGHTS; AND/OR WHETHER
RESPONDENTS DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN CONNECTION WITH THE REMOVAL OF TACY FROM THE QRDT
DETAIL. THESE QUESTIONS MUST BE ANSWERED IN THE AFFIRMATIVE.
A CAREFUL REVIEW OF THE RECORD REVEALS THAT THE TERMINATION OF THE
TACY DETAIL TO THE QRDT WAS BASED AT LEAST IN PART UPON THE FACT THAT
TACY WAS PROMOTING THE INTERESTS OF THE NTEU WHILE DETAILED AT THE ASC.
THE CONTENTION THAT TERMINATION OF THE DETAIL WAS EFFECTED SOLELY FOR
BUSINESS REASONS MUST BE REJECTED.
IT WAS ESTABLISHED THAT TACY'S GRADE LEVEL WAS NOT, WITHIN THE
CONTEXT OF THE INTERNAL REVENUE SERVICE MANUAL SUPPLEMENT DATED JANUARY
15, 1979, CONSIDERED HIGH FOR THE WORK (JOINT EXHIBIT 1). IN FACT, THE
MANUAL SUPPLEMENT IMPOSED NO GRADE LEVEL RESTRICTION ON THE DETAIL.
INSTEAD IT PROVIDED AUTHORITY FOR THE CONCLUSION THAT THE WORK COULD BE
PERFORMED BY A REVENUE OFFICER ENGAGED IN WORK OF A TYPE THEN BEING
PERFORMED BY ANOTHER GS-12 REVENUE OFFICER IN THE BDO.
BDO COLLECTION DIVISION CHIEF WILLIAM LIEBERMAN AND HIS ASSISTANT
WERE, PRIOR TO EFFORTS TO FILL THE DETAIL, THOROUGHLY FAMILIAR WITH THE
CRITIQUE OUTLINED IN THE LAWLER-HARRIGAN MEMORANDUM; HOWEVER, DESPITE
SUCH KNOWLEDGE THEY SAW NO REASON TO GIVE ANY CONSIDERATION TO THE
LAWLER-HARRIGAN RECOMMENDATION THAT THE QRDT DETAIL UNDER UTILIZED
REVENUE OFFICER FUNCTIONS. IN FACT, ANOTHER GS-12 REVENUE OFFICER, DAN
DI GIANDOMENICO, WAS NOT SELECTED FOR THE DETAIL SOLELY BECAUSE HE WAS
NEW ON HIS JOB, AND NOT BECAUSE OF HIS GRADE LEVEL.
KEY MANAGEMENT OFFICIALS IN THE BDO ESTABLISHED THAT A REVENUE
OFFICER VOLUNTEER WAS ACTIVELY SOUGHT BY THOSE CHARGED WITH
RESPONSIBILITY FOR FILLING THE DETAIL. LOWER MANAGEMENT OFFICIALS UNDER
DAY WERE ALLOWED BY BDO COLLECTION DIVISION CHIEF LIEBERMAN TO PROCEED
WITH THE SEARCH FOR A VOLUNTEER WITHOUT RESTRICTIONS AS TO GRADE LEVEL.
INFORMATION THAT TACY HAD VOLUNTEERED WAS RECEIVED WITH APPROVAL BY
LOWER BDO MANAGEMENT OFFICIALS, AND BY LEWIS DAY AND WILLIAM LIEBERMAN.
THERE IS NO EVIDENCE OF ANY PRIOR CONCERN WITH RESPECT TO TACY'S GS-12
GRADE LEVEL AT ANY OF THE VARIOUS STAGES LEADING TO HIS ASSIGNMENT, NOR
WAS ANY RESTRICTION EVER SUGGESTED AS TO THE GRADE LEVEL OF THE REVENUE
OFFICER TO BE SELECTED. THE PICTURE PRESENTED IS ONE OF A MANAGEMENT
VERY PLEASED WITH THE FACT THAT TACY HAD VOLUNTEERED.
ALTHOUGH AN EFFORT WAS MADE TO SHOW THAT LIEBERMAN WAS PRESENTED WITH
DAY'S COMPLETION OF THE TACY ASSIGNMENT, THE RECORD CLEARLY EVIDENCES
THE FACT THAT LIEBERMAN WAS AWARE OF THE NEED FOR SOMEONE TO FILL THE
DETAIL. LIEBERMAN PROVIDED SPECIFIC INSTRUCTIONS TO DAY WITH RESPECT TO
THE TASK OF FINDING A REVENUE OFFICER FOR THE JOB. NO GRADE-LEVEL
CAVEATS ACCOMPANIED HIS INSTRUCTIONS TO DAY. THEREAFTER, UPON LEARNING
OF DAY'S APPROVAL OF TACY, LIEBERMAN APPROVED OF DAY'S WORK IN FILLING
THE DETAIL BY ACCEPTING TACY AS A VOLUNTEER.
EVIDENCE OF DISSATISFACTION WITH TACY'S ORGANIZATIONAL ACTIVITIES ON
BEHALF OF NTEU ARE FULLY DOCUMENTED IN THE . RECORD. THOMAS COLEMAN,
ASSISTANT REGIONAL COMMISSIONER FOR COLLECTIONS, AND WILLIAM ETHE,
ASSISTANT REGIONAL COMMISSIONER FOR RESOURCE MANAGEMENT VIEWED TACY'S
RECRUITING ACTIVITY AT THE ASC AS A PROBLEM TO BE LOOKED INTO AND
SOLVED. THE MATTER WAS OF SUFFICIENT IMPORTANCE TO CAUSE ETHE TO MEET
WITH COLEMAN, AND TO CAUSE COLEMAN TO PHONE LIEBERMAN. COLEMAN
ACKNOWLEDGED THAT IT WAS COMMON KNOWLEDGE THAT NTEU SOUGHT TO ORGANIZE
ASC EMPLOYEES. LIEBERMAN'S RESPONSE INDICATED PRIOR KNOWLEDGE OF THE
MATTER TROUBLING COLEMAN AND ETHE AS HE ADVISED HE HAD ALREADY
TERMINATED TACY'S DETAIL, THUS INDICATING HIS PARTICIPATION IN
RESOLUTION OF THE PROBLEM POSED BY COLEMAN.
ALTHOUGH LIEBERMAN SOUGHT TO SHOW THAT HE HAD TERMINATED TACY BECAUSE
OF TACY'S GRADE LEVEL, A CAREFUL ANALYSIS OF THE RECORD REFLECTS THAT
GRADE LEVEL COULD NOT HAVE BEEN THE SOLE REASON FOR THE TERMINATION, AND
LIEBERMAN'S TESTIMONY ON THIS FACTUAL ISSUE IS DEEMED DISCREDITED IN
FAVOR OF A FINDING THAT TACY'S UNION ACTIVITIES AT THE ASC COMPRISED AT
LEAST A PARTIAL BASIS FOR LIEBERMAN'S DECISION. BOTH THE COLEMAN AND
LIEBERMAN ACCOUNT OF THEIR CONVERSATION, ESTABLISH A MUTUAL AWARENESS OF
A NEED TO REMOVE TACY FROM THE DETAIL, AND THE CORRELATIVE NEED TO
PROVIDE AN ACCEPTABLE BUSINESS REASON AS A BASIS FOR THE REMOVAL.
ALTHOUGH A GREAT DEAL OF TESTIMONY WAS ADDUCED TO SHOW THAT COLEMAN'S
TELEPHONE CALL OCCURRED AFTER LIEBERMAN'S DECISION TO REMOVE TACY, PROOF
OF THIS FACT WAS NOT AT ALL CONVINCING. INSTEAD IT IS CONCLUDED
COLEMAN'S TELEPHONE CALL OCCURRED AFTER LIEBERMAN BECAME THOROUGHLY
AWARE OF TACY'S INVOLVEMENT ON BEHALF OF NTEU. EVIDENCE RELATING TO THE
COLEMAN-LIEBERMAN CONVERSATION SERVES TO EXPLAIN THE REAL NATURE OF
LIEBERMAN'S PRECIPITOUS TERMINATION OF THE DETAIL.
EVIDENCE OF LIEBERMAN'S LATE RECOLLECTION OF THE LAWLER-HARRIGAN
MEMORANDUM MUST ALSO BE REJECTED IN THE CLEAR LIGHT OF FACTS INDICATIVE
OF HIS PRIOR FAMILIARITY WITH THE CONTENTS OF THE MEMORANDUM; FACTS
CONCERNING A PRIOR QRDT DETAIL IN 1978; SPECIFIC AWARENESS OF TACY'S
GS-12 GRADE LEVEL; STRONG PROOF SHOWING THAT FOR A PERIOD PRIOR TO THE
DETAIL, AND THEREAFTER, GRADE LEVEL WAS NOT A MANAGEMENT CONSIDERATION;
CONVINCING PROOF THAT TACY'S SUPERVISORS WERE WELL PLEASED WITH TACY'S
ACT OF VOLUNTEERING FOR THE DETAIL; AND THE TIMING OF MANAGEMENT
CONCERN WITH TACY'S ACTIVITIES AT ASC.
EXTENDING THIS REASONING, BOTH THE COLEMAN-ETHE, AND
COLEMAN-LIEBERMAN CONVERSATIONS EVIDENCE THE FACT THAT THE INTERNAL
REVENUE SERVICE WAS WELL AWARE OF TACY'S UNION ACTIVITY PRIOR TO THE
TERMINATION OF THE DETAIL; AND FURTHER THAT IT WAS THE INTENT OF THE
SERVICE TO DO SOMETHING ABOUT THE SITUATION. OF PARTICULAR SIGNIFICANCE
IS LIEBERMAN'S APPARENT ACKNOWLEDGEMENT OF TACY'S ACTIVITIES ON BEHALF
OF NTEU WHEN QUESTIONED BY COLEMAN. LIEBERMAN'S STATEMENTS MAY BE
CONSTRUED AS AN INDICATION THAT HE HAD ALREADY ACTED TO ALLAY THE
CONCERNS OF COLEMAN AND ETHE. COLEMAN'S APPROVAL OF LIEBERMAN'S ACTION
INDICATED THAT COLEMAN WAS THOROUGHLY SATISFIED WITH LIEBERMAN'S
DISPOSITION.
THE TERMINATION OF TACY'S DETAIL WAS NOT ACCOMPLISHED WITHOUT
CONSIDERABLE DIFFICULTY. ALEXANDER LAMIE WAS INSTRUCTED THAT THE DETAIL
WAS BEING TERMINATED BECAUSE TACY'S GRADE LEVEL WAS TOO HIGH. HE WAS
ASKED TO CALL TACY AND TELL HIM "HIS DETAIL WAS BEING TERMINATED FOR
THAT REASON (EMPHASIS ADDED)." THUS, IT WAS MADE CLEAR THAT REMOVAL
SHOULD BE ATTRIBUTED SOLELY TO A CONCERN OVER GRADE LEVEL. TACY'S WORK
IN THE BDO HAD BEEN REASSIGNED TO OTHERS, IT WAS NECESSARY TO
DISCONTINUE HIS QRDT WORK AND ASSIGN NEW WORK TO HIM UPON HIS RETURN.
IT WAS ALSO NECESSARY TO SELECT ANOTHER REVENUE OFFICER FOR THE DETAIL,
OVERCOME THE OBJECTIONS OF THE INDIVIDUAL INVOLUNTARILY SELECTED,
REASSIGN THIS PERSON'S WORK IN THE BDO, AND INTEGRATE THE DETAILEE INTO
THE QRDT. THE ENTIRE PROCEDURE WAS HIGHLY UNUSUAL. IN FACT, LAMIE AND
LIEBERMAN ESTABLISHED THAT A DETAIL HAD NEVER BEEN TERMINATED
PREMATURELY. THE QUESTIONING OF TACY BY LIEBERMAN AND LAMIE CONCERNING
TACY'S NTEU ACTIVITIES AT THE ASC ALSO DISCLOSES THE UNDERLYING
INTERESTS OF BDO MANAGEMENT OFFICIALS. ALTHOUGH THE QUESTIONING
OCCURRED AFTER THE TERMINATION, IT TENDED TO SHOW THEIR PRIOR CONCERN
WITH RESPECT TO TACY'S UNION ACTIVITY AT THE ASC. THESE INQUIRIES WERE
ADMITTED BY BOTH LIEBERMAN AND LAMIE.
A CAREFUL REVIEW OF THE RECORD DISCLOSES NO EVIDENTIARY BASIS FOR
CONCLUDING THAT ASC MANAGEMENT OFFICIALS WERE IN ANY WAY RESPONSIBLE FOR
THE TERMINATION OF TACY'S DETAIL. THE INITIAL ASSIGNMENT OF TACY AND
SUBSEQUENT TERMINATION OF THE DETAIL WERE ACCOMPLISHED BY THE BDO.
THEREFORE THOSE PORTIONS OF THE AMENDED COMPLAINT ALLEGING VIOLATIONS
AGAINST THE ASC MUST BE DISMISSED. TACY'S TESTIMONY WITH RESPECT TO THE
INVOLVEMENT OF THE BDO WAS, WITH THE EXCEPTION OF TESTIMONY CONCERNING
LIEBERMAN'S MENTION OF THE COLEMAN-LIEBERMAN TELEPHONE CONVERSATION ON
FEBRUARY 2, 1979, CORROBORATED AND OTHERWISE ESTABLISHED IN SIGNIFICANT
DETAIL. ALSO, THE FINDINGS HEREIN, WITH RESPECT TO THE INVOLVEMENT OF
THE BDO ARE SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, PRINCIPALLY
EVIDENCE EMANATING FROM COLEMAN, LIEBERMAN AND LAMIE.
ACCORDINGLY, BASED ON ALL OF THE CIRCUMSTANCES, THE TIMING OF THE
TERMINATION, THE LACK OF ANY CREDIBLE AND PERSUASIVE REASON FOR THE
TERMINATION, IT IS FOUND THAT THE REMOVAL OF TACY FROM THE DETAIL WAS
MOTIVATED AT LEAST IN PART BY ANTI-UNION CONSIDERATIONS, AND FURTHER
THAT THE ACTION WAS TAKEN AT LEAST IN PART, AS A REPRISAL FOR TACY'S
UNION ACTIVITY. SE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA,
ASSISTANT SECRETARY CASE NO. 40-8733 (CA), 1 FLRA NO. 108(SEPTEMBER 13,
1979), REPORT NO. 16. SINCE VIOLATIONS OF SECTION 7116(A)(1) AND (2)
MAY BE FOUND IN "MIXED MOTIVE" SITUATIONS THE GENERAL COUNSEL'S BURDEN
OF PROOF HAS BEEN MET.
HAVING FOUND AND CONCLUDED THAT THE BDO VIOLATED SECTIONS 7116(A)(1)
AND (2) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY HEREBY ORDERS THAT THE BOSTON DISTRICT OFFICE OF THE UNITED
STATES INTERNAL REVENUE SERVICE, BOSTON, MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING JAMES E. TACY IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, BY TERMINATING ANY DETAIL OF JAMES E. TACY BECAUSE OF
ASSISTANCE PROVIDED TO THE NATIONAL TREASURY EMPLOYEES UNION AT THE
ANDOVER SERVICE CENTER, UNITED STATES INTERNAL REVENUE SERVICE, ANDOVER,
MASSACHUSETTS.
(B) DISCOURAGING JAMES E. TACY FROM MEMBERSHIP IN THE NATIONAL
TREASURY EMPLOYEES UNION BY DISCRIMINATING AGAINST HIM BECAUSE OF
ASSISTANCE GIVEN TO THE NATIONAL TREASURY EMPLOYEES UNION AT THE ANDOVER
SERVICE CENTER, UNITED STATES INTERNAL REVENUE SERVICE, ANDOVER,
MASSACHUSETTS.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING JAMES E. TACY, OR ANY OTHER EMPLOYEE IN THE EXERCISE OF RIGHTS
ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) POST AT THE VARIOUS POSTS OF DUTY OF THE BOSTON DISTRICT OFFICE,
UNITED STATES INTERNAL REVENUE SERVICE, COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
THE DISTRICT DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT
ALLEGES VIOLATIONS OF SECTION 7116(A)(1) AND (2) AGAINST THE ANDOVER
SERVICE CENTER, ANDOVER, MASSACHUSETTS, BE, AND HEREBY IS, DISMISSED.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 11, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE JAMES E. TACY IN THE
EXERCISE OF HIS RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE BY TERMINATING ANY DETAIL OF JAMES E. TACY BECAUSE OF
ASSISTANCE PROVIDED TO THE NATIONAL TREASURY EMPLOYEES UNION AT THE
ANDOVER SERVICE CENTER, UNITED STATES INTERNAL REVENUE SERVICE, ANDOVER,
MASSACHUSETTS.
WE WILL NOT DISCOURAGE JAMES E. TACY FROM MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATING AGAINST HIM BECAUSE OF ASSISTANCE GIVEN
TO THE NATIONAL TREASURY EMPLOYEES UNION AT THE ANDOVER SERVICE CENTER,
UNITED STATES INTERNAL REVENUE SERVICE, ANDOVER, MASSACHUSETTS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
441 STUART STREET, 8TH FLOOR, BOSTON, MA 02116, AND WHOSE TELEPHONE
NUMBER IS: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL ALSO FILED AN OPPOSITION TO THE RESPONDENTS'
EXCEPTIONS, WHICH OPPOSITION HAS BEEN OBJECTED TO BY THE RESPONDENTS ON
THE BASIS THAT IT WAS UNTIMELY FILED UNDER SECTION 2423.28(B) OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2423.28(B)). INASMUCH AS THE
GENERAL COUNSEL'S OPPOSITION WHICH IS DATED AUGUST 20, 1980 WAS NOT
FILED WITH THE AUTHORITY WITHIN TEN DAYS AFTER SERVICE OF THE
RESPONDENTS EXCEPTIONS WHICH ARE DATED JULY 25, 1980, SUCH OPPOSITION IS
UNTIMELY AND HAS NOT BEEN CONSIDERED BY THE AUTHORITY IN THE RESOLUTION
OF THIS CASE. ALSO, ALL OF THE ADDITIONAL DOCUMENTS FILED WITH THE
AUTHORITY BY THE PARTIES ARE UNAUTHORIZED AND/OR UNTIMELY AND HAVE NOT
BEEN CONSIDERED.
/2/ THE AUTHORITY REJECTS THE RESPONDENTS' CONTENTION THAT JAMES E.
TACY'S TESTIMONY SHOULD BE STRICKEN AND THE COMPLAINT DISMISSED BECAUSE
THE GENERAL COUNSEL VIOLATED SECTION 2423.7(D) OF THE AUTHORITY'S RULES
AND REGULATIONS BY DISCLOSING TO TACY, BEFORE THE HEARING, THE CONTENT
OF STATEMENTS FURNISHED BY RESPONDENTS' WITNESSES DURING THE
INVESTIGATION OF THE CHARGES. WHILE THE PRETRIAL DISCLOSURE TO TACY OF
STATEMENTS EXECUTED BY MANAGEMENT WITNESSES WAS INCONSISTENT WITH THE
POLICY ARTICULATED IN SECTION 2423.7(C) AND (D) OF THE AUTHORITY'S RULES
AND REGULATIONS AND WAS THEREFORE IMPROPER, SUCH DISCLOSURE DOES NOT
REQUIRE THAT TACY'S TESTIMONY BE EXCLUDED; RATHER, THIS IMPROPRIETY
AFFECTS THE WEIGHT TO BE ACCORDED THERETO. IN THIS LATTER REGARD, THE
AUTHORITY NOTES, IN AGREEMENT WITH THE JUDGE, THAT RESPONDENTS HAD THE
OPPORTUNITY TO ATTACK TACY'S CREDIBILITY ON THIS AND OTHER GROUNDS
DURING CROSS-EXAMINATION. MOREOVER, AS DISCUSSED INFRA, THE RECORD
ESTABLISHES THAT TACY'S TESTIMONY WITH RESPECT TO THE CONDUCT OF BDO IS
SUPPORTED BY INDEPENDENT EVIDENCE PROVIDED BY WITNESSES FOR BDO.
/3/ AT ALL TIMES MATERIAL HEREIN, THE BARGAINING UNIT EMPLOYEES AT
THE CENTER WERE EXCLUSIVELY REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), AND NTEU WAS WAGING AN
ORGANIZATIONAL CAMPAIGN TO REPLACE AFGE AS THE BARGAINING AGENT.
BARGAINING UNIT EMPLOYEES AT BDO ARE EXCLUSIVELY REPRESENTED BY NTEU.
/4/ THE AUTHORITY NOTES THAT THE GENERAL COUNSEL HAS NOT REQUESTED AN
ORDER REQUIRING THAT TACY'S DETAIL BE REINSTATED. FURTHER, THE
AUTHORITY TAKES ADMINISTRATIVE NOTICE OF THE FACT THAT NTEU WAS
CERTIFIED ON AUGUST 12, 1980 AS THE EXCLUSIVE REPRESENTATIVE OF CENTER
EMPLOYEES.
/5/ THIS MOTION, INITIALLY DENIED DURING THE HEARING, WAS RENEWED IN
THE POST-HEARING BRIEF FILED BY COUNSEL REPRESENTING THE RESPONDENTS.
/6/ UNDER AUTHORITY PROVIDED IN SECTION 2423.19(R) OF THE
REGULATIONS, 5 C.F.R. 2423.19(R), THE FOLLOWING CORRECTIONS ARE MADE IN
THE HEARING TRANSCRIPT: (TABLE OMITTED)
/7/ SECTION 2423.19(S) OF THE REGULATIONS, 5 C.F.R. 2423.19(S),
AUTHORIZES THE PRESIDING ADMINISTRATIVE LAW JUDGE TO "SEQUESTER
WITNESSES WHERE APPROPRIATE." PREHEARING DISCLOSURE OF STATEMENTS WOULD
SUBSTANTIALLY DIMINISH ADVANTAGES TO BE EXPECTED FROM THE SEQUESTRATION
OF WITNESSES. HOWEVER, IN THIS CASE TACY WAS PRESENT THROUGHOUT THE
COURSE OF THE HEARING.
/8/ THE BDO WAS SELECTED TO FILL THE DETAIL BECAUSE OF ITS PROXIMITY
TO THE ASC (TR. 272, 298). THE DETAILS WERE MADE FOR 90-DAY PERIODS
(TR. 231-232).
/9/ THE BOSTON DISTRICT OFFICE WAS RESPONSIBLE FOR AUTHORIZING ANY
DEVIATIONS FROM THE MANUAL SUPPLEMENT.
/10/ THIS INDIVIDUAL WAS A BDO REVENUE OFFICER NAMED DAN DI
GIANDOMENICO (TR. 204). UNDER THE PROVISIONS OF THE MANUAL SUPPLEMENT,
HE WOULD NORMALLY HAVE BEEN THE DETAILEE SELECTED (TR. 317-318).
HOWEVER, THIS EMPLOYEE WAS NOT SELECTED FOR THIS DETAIL SOLELY BECAUSE
HE WAS NEW ON HIS JOB (TR. 318).
/11/ THE LAWRENCE POST OF DUTY FELL WITHIN PETERSON'S AREA OF
RESPONSIBILITY.
/12/ DAY'S TESTIMONY ESTABLISHED THAT HIS CONVERSATION WITH LIEBERMAN
CONCERNING THE NEED FOR THE DETAIL AND LATER WITH RESPECT TO TACY'S
SELECTION, OCCURRED DURING THE WEEK OF JANUARY 22, 1979 (TR. 227).
/13/ LIEBERMAN COULD NOT RECALL WHETHER TACY'S NAME WAS DISCUSSED
(TR. 333-334).
/14/ BECAUSE COUNSEL FOR THE RESPONDENTS DID NOT CALL ETHE AS A
WITNESS, COUNSEL FOR THE GENERAL COUNSEL ARGUED IN HIS POST-HEARING
BRIEF THAT AN INFERENCE SHOULD BE DRAWN THAT HAD EHTE TESTIFIED, HIS
TESTIMONY WOULD HAVE BEEN ADVERSE TO THE INTERESTS OF RESPONDENTS. IT
IS WELL ESTABLISHED THAT NO ADVERSE INFERENCE MAY ARISE FROM A FAILURE
TO CALL AS A WITNESS, ONE WHOM THE PARTY HAD THE SAME OPPORTUNITY OF
CALLING, OR ONE WHOSE TESTIMONY WOULD BE MERELY CUMULATIVE. IN THIS
CASE THERE WAS NO SHOWING THAT ETHE WAS NOT EQUALLY AVAILABLE TO COUNSEL
FOR THE GENERAL COUNSEL, AND CLEARLY ETHE'S TESTIMONY WOULD HAVE BEEN
CUMULATIVE IN NATURE. IN ADDITION, IT IS NOTED THAT SECTION 2423.14(A)
OF THE REGULATIONS, 5 C.F.R. 2423.14(A), PROVIDES "THAT THE PARTIES
SHALL NOT BE BOUND BY THE RULES OF EVIDENCE, WHETHER STATUTORY, COMMON
LAW, OR ADOPTED BY A COURT."
/15/ LIEBERMAN FINALLY SWITCHED TO TUESDAY, JANUARY 30, 1979, BUT
ACKNOWLEDGED HE WAS NOT SURE OF THE EXACT DATE (TR. 326, 336-337).
/16/ THIS WAS THE DAY THAT TACY REPORTED FOR WORK ON THE ASC DETAIL.
THE RECORD DID REFLECT THAT DAY WAS ON ANNUAL LEAVE ON TUESDAY, JANUARY
30, 1979, AND WEDNESDAY, JANUARY 31, 1979 (TR. 210-211, 215).
/17/ LIEBERMAN'S ANNOUNCEMENT IS NOT REFLECTED IN THE MINUTES OF THE
MEETING (RESPONDENTS' EXHIBIT 10). DAY AND LIEBERMAN EXPLAINED THE
OMISSION BY STATING THAT COPIES OF THE MINUTES WERE CIRCULATED TO
MANAGEMENT OFFICIALS, AND THAT THE ITEM WAS NOT OF GENERAL INTEREST (TR.
221-222, 307-308). IN VIEW OF THE IMPACT OF THE DECISION IT IS
DIFFICULT TO PERCEIVE WHY A MODIFICATION OF BDO POLICY WOULD NOT HAVE
BEEN OF GENERAL INTEREST TO BDO MANAGEMENT OFFICIALS.
/18/ LAMIE TESTIFIED THAT HE PLACED THE CALL TO TACY ON THURSDAY.
TACY TESTIFIED THAT HE RECEIVED THE CALL ON FRIDAY. SINCE THE CALL
PRECEDED A CALL FROM TACY TO LIEBERMAN, AND SINCE LIEBERMAN ACKNOWLEDGED
THAT THE CALL TO HIM DID NOT OCCUR BEFORE LATE IN THE AFTERNOON ON
FRIDAY, FEBRUARY 2, 1979, IT IS DETERMINED THAT LAMIE PLACED THE CALL ON
FRIDAY, FEBRUARY 2, 1979 (TR. 311-312).
/19/ AS PREVIOUSLY NOTED, LIEBERMAN'S TESTIMONY ESSENTIALLY AGREED
WITH TACY'S WITH RESPECT TO THE TIME OF THE CALL AS BEING IN THE
AFTERNOON ON FRIDAY, FEBRUARY 2, 1979.
/20/ HOWEVER, LIEBERMAN DID ACKNOWLEDGE THAT THE TACY AND COLEMAN
CALLS WERE CLOSE IN POINT OF TIME (TR. 311-312).
/21/ LIEBERMAN ASSERTED THAT TACY REPLIED BY SAYING THAT THE ONLY
UNION ACTIVITY IN WHICH HE PARTICIPATED INVOLVED ATTENDANCE AT AN NTEU
ORGANIZATIONAL MEETING (TR. 312). TACY TESTIFIED THAT HE DENIED THAT HE
PARTICIPATED IN NTEU ACTIVITY AT THE ASC (TR. 104-105). HOWEVER, A
LETTER PREPARED BY TACY IN CONNECTION WITH THE EPISODE INDICATES THAT
LIEBERMAN'S RECOLLECTION IN THIS REGARD IS ACCURATE (RESPONDENTS'
EXHIBIT 2).
/22/ IN TACY'S THIRD STATEMENT, EXECUTED ON SEPTEMBER 25, 1979,
MONTHS AFTER THE CONVERSATION IN QUESTION, TACY AGAIN ALLEGES THAT
LIEBERMAN MENTIONED THE COLEMAN TELEPHONE CALL DURING THE FRIDAY,
FEBRUARY 2, 1979 TACY-LIEBERMAN CONVERSATION (RESPONDENTS' EXHIBIT 1).
/23/ THE FORMAL CHARGE (GENERAL COUNSEL EXHIBIT 1-A), FILED ON JUNE
12, 1979, IS NEARLY IDENTICAL TO THE MARCH 5, 1979 LETTER.
/24/ COUNSEL REPRESENTING THE RESPONDENTS ATTACKED TACY'S CREDIBILITY
BY ATTEMPTING TO ESTABLISH THAT TACY BECAME AWARE OF THE COLEMAN
TELEPHONE CALL DURING AN INFORMAL SETTLEMENT CONFERENCE CONVENED BY THE
PARTIES ON APRIL 25, 1979, AND ATTENDED BY LIEBERMAN AND TACY. ALTHOUGH
THE RECORD REFLECTS CERTAIN REFERENCE TO SUBJECT MATTER DISCUSSED DURING
THIS CONFERENCE, SUCH EVIDENCE WAS GIVEN NO CONSIDERATION WHATSOEVER IN
CONNECTION WITH THE FORMULATION OF THIS DECISION AND IS NOT OTHERWISE
CONSIDERED AS PROBATIVE EVIDENCE ON ANY ISSUE. SEE GENERAL SERVICES
ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR NO.
1113(1978); DIRECTORATE OF FACILITY ENGINEERS, FORT RICHARDSON, ALASKA,
A/SLMR NO. 946(1977); AND U.S. DEPARTMENT OF AIR FORCE, NORTON AIR
FORCE BASE, A/SLMR NO. 261(1973).
/25/ COUNSEL FOR THE RESPONDENT ATTACHED TO HIS POST-HEARING BRIEF A
COPY OF A SEPTEMBER 28, 1979 DISMISSAL OF AN UNFAIR LABOR PRACTICE
CHARGE FILED AGAINST THE ASC FOR ALLEGEDLY SPONSORING OR ASSISTING NTEU
IN CONNECTION WITH NTEU'S ORGANIZATIONAL CAMPAIGN. HOWEVER, THE
INCIDENTS IN QUESTION OCCURRED AFTER THE PATTERN OF EVENTS INVOLVED IN
THIS CASE. A MOTION TO STRIKE THIS LETTER WAS FILED BY COUNSEL FOR THE
GENERAL COUNSEL, AND A MEMORANDUM IN OPPOSITION TO THE MOTION TO STRIKE
WAS FILED BY COUNSEL REPRESENTING THE RESPONDENTS. THE MOTION TO STRIKE
MUST BE DENIED SINCE THE REGIONAL DIRECTOR'S LETTER IS A DECISION ISSUED
PURSUANT TO SECTION 2423.10 OF THE REGULATIONS, 5 C.F.R. 2423.10, AND IS
A MATTER OF PUBLIC RECORD BY REASON OF THE PROVISIONS OF SECTION
2411.3(E)(1) OF THE REGULATIONS, 5 C.F.R. 2411.3(E)(1). OFFICIAL NOTICE
OF SUCH DOCUMENTS MAY BE TAKEN. ACCORDINGLY, THE DOCUMENT IS NOTICED
SOLELY FOR THE PURPOSE OF PROVIDING BACKGROUND INFORMATION RELATING TO
THE CASE. SEE 5 C.F.R. 2423.19(O). HOWEVER, THE DOCUMENT IN QUESTION
PROVIDES NO BASIS WHATSOEVER FOR FACTUAL AND LEGAL CONCLUSIONS REACHED
HEREIN.
/26/ ACCORDING TO LAMIE, TACY INDICATED THAT HE SOUGHT A POSTING TO
AID NTEU IN ITS ORGANIZATIONAL CAMPAIGN AGAINST ASC.
/27/ SEE DISCUSSION AT PAGES 4-5 INFRA.